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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Citicasters Co. ) Control No. EB-00-
Licensee of Station KSJO(FM) ) NAL/Acct. No. X32080031
San Jose, CA ) Facility #4117
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 25, 2000 Released:
September 26, 2000
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find Citicasters Co. (``Citicasters''), licensee of Station
KSJO(FM), San Jose, CA, apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000) for a violation of 18
U.S.C. § 1464 and Section 73.3999 of the Commission's rules, 47
C.F.R. § 73.3999, by broadcasting indecent material.
2. The Commission received information indicating that
Station KSJO(FM), San Jose, CA, may have violated 18 U.S.C. §
1464 by broadcasting allegedly indecent material when it aired a
``joke'' on August 25, 1999, at approximately 1:15 p.m. Attached
is a transcript of the ``joke'' that is the subject of this
action. We issued a letter of inquiry, asking Citicasters to
comment on the complaint. Citicasters responded to our inquiry
on July 7, 2000.
3. Section 503(b)(1)(D) of the Act provides in pertinent
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection, to have - violated any provision of section
1304, 1343, or 1464 of title 18, United States Code;
shall be liable to the United States for a forfeiture
4. Pursuant to 47 U.S.C. §§ 312(a)(6) and 503(b)(1)(D),
the Commission has statutory authority to take appropriate
administrative action when licensees broadcast material in
violation of 18 U.S.C. § 1464, which provides criminal penalties
for anyone who "utters any obscene, indecent or profane language
by means of radio communication."
5. The Commission defines broadcast indecency as language
or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987), aff'd 3 FCC Rcd 930
(1987)(subsequent history omitted)(citing FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). The United States Court of
Appeals for the District of Columbia Circuit has upheld the
Commission's authority to restrict the broadcast of indecent
material at times when there is a reasonable risk that children
may be in the audience. Action for Children's Television v. FCC,
852 F.2d 1332 (D.C. Cir. 1988). The court subsequently concluded
that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a
properly tailored means of vindicating the government's
compelling interest in the welfare of children. Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S. Ct. 701 (1996) (ACT III).
6. In response to our inquiry, Citicasters admits that the
``joke'' is crude, and it states that the on-air talent involved
was reprimanded for airing such material. Citicasters argues,
however, that the ``joke'' is not indecent because ``it does not
describe sexual activities or organs in terms patently offensive
as measured by contemporary community standards.'' Instead,
Citicasters claims that the ``joke'' ``relies simply on innuendo,
the sexual import of which is not inescapable.'' We reject
Citicasters' arguments. The Commission has repeatedly held that
``innuendo may be patently offensive within the meaning of our
indecency definition if it is understandable and clearly capable
of a specific sexual or excretory meaning which, in context, is
inescapable.'' San Francisco Century Broadcasting, L.P., 8 FCC
Rcd 498 (1993). We believe the ``punch line'' of the ``joke'' is
an inescapable reference to incest and sex with children.
Citicasters does not offer any alternative interpretation under
which the ``joke'' is not referring to sexual activities in a
patently offensive manner. Under these circumstances, it appears
that the excerpt contains language that describes sexual
activities or organs in patently offensive terms. Because the
material aired at approximately 1:15 p.m., when there was a
reasonable risk that children may have been in the audience, it
is legally actionable. Thus, it appears that on August 25, 1999,
at approximately 1:15 p.m., Station KSJO(FM) violated 18 U.S.C. §
1464 and Section 73.3999 of the Commission's rules by airing
7. Section 503(b) of the Communications Act of 1934, as
amended, (the ``Act''), 47 U.S.C. § 503(b), and Section 1.80(a)
of the Commission's rules, 47 C.F.R. § 1.80(a), both state that
any person who willfully or repeatedly fails to comply with the
provisions of the Act or the rules shall be liable for a
forfeiture penalty. For purposes of Section 503(b) of the Act,
the term ``willful'' means that the violator knew it was taking
the action in question, irrespective of any intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
8. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.1 The Forfeiture Policy Statement
also specifies that the Commission shall adjust a forfeiture
based upon consideration of the factors enumerated in Section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D) such as ``the
nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.''2 After reviewing all of the
circumstances, we believe a $7,000 forfeiture is appropriate in
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311, and 1.80 of the Commission's rules,3 that
Citicasters Co. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of seven thousand dollars ($7,000) for
willfully violating Section 503(b)(1)(D) of the Communications
Act of 1934, as amended, and Section 73.3999 of the Commission's
10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Citicasters SHALL PAY to the United States the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
12. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number
13. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to
Citicasters' counsel, John M. Burgett, Esq., Wiley, Rein &
Fielding, 1776 K Street, N.W., Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
1. Chief, Enforcement Bureau
Radio Station: KSJO(FM), San Jose, CA
Date/Time Broadcast: August 25, 1999, at approximately 1:15 p.m.
Material Broadcast: ``Joke''
A little girl comes into the bathroom where Mommy is taking
a shower. The little girl points to Mommy and asks,
``what's that?'' Mommy says, ``that's my vagina.'' The
little girl asks, ``when do I get one of those?'' Mommy
says, ``when you get older.'' The little girl comes into
the bathroom where Daddy is taking a shower she points to
Daddy and asks, ``what's that?'' The Daddy says, ``that's
my penis.'' The little girl asks, ``when do I get one of
those?'' The Daddy says, ``as soon as Mommy goes to work.
1 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17113
(1997), recon. denied 15 FCC Rcd 303 (1999) (Forfeiture Policy
Statement); 47 C.F.R. § 1.80(b).
2 12 FCC Rcd at 17110.
3 47 C.F.R. §§ 0.111, 0.311 and 1.80.